In any given situation, libertarians are usually the ones calling for non-violence. As a general rule, we do not believe in criminally punishing people for ‘hate’ speech, throwing them in jail for an accumulation of parking tickets, or shooting at people who simply want to sell drugs. However, the libertarian consensus is that violence, or threats of violence, may be met with violence. The government, therefore, according to libertarian theory, may use its force to restrain and punish those who do, or seek to do physical harm to society or any member thereof. But this is not only a common sense libertarian position, but also the position in South African law.

South African police at Alexandra Township 1/Jan/1985. UN Photo/x. www.unmultimedia.org/photo/
South African Police in Alexandra, January 1985. UN Photo.

The history of the South African criminal justice system is not a proud one. While the courts were impartial on the whole, the prosecuting authorities and Parliament were not; and constantly sought out ways to quell any opposition to Apartheid. Legislation such as the Terrorism Act (1967) and the Internal Security Act (1982) had broad provisions which allowed executive functionaries such as police officers or the Minister of Justice to, in essence, arrest and hold anyone for any reason, as long as it was framed in the language of ‘communism‘ or ‘terrorism’. The executive and legislature were often annoyed by the courts, which were reluctant to find individuals guilty of crime on a whim, and so used parliamentary sovereignty and appeals to popular nationalist sentiment to get their way.

When the new constitutional order came about in 1993, things changed dramatically. Due process was entrenched in the Constitution and much of the anti-terror legislation was repealed. However, it would have been ignorant and naive to believe that because the Apartheid government had nefarious intentions with its legislation, that the threat of terror and insurrection was not real. Africa, rightly or wrongly, is known as a place of civil strife and irrational levels of violence. Both East and West Africa have problems with terrorism in the forms of al-Shabaab and Boko Haram respectively, and so South Africa would have been wrong to assume immunity.

The Protection of Constitutional Democracy against Terrorist and Related Activities Act was passed in late 2004 and early 2005, essentially consolidating South Africa’s legal measures to fight terror.

In section 1 of the Act, ‘terrorist activity’ is defined as including:

“[endangering] the life, or violates the physical integrity or physical freedom of, or causes serious bodily injury to or the death of, any person, or any number of persons”;

“[causing] serious risk to the health or safety of the public or any segment of the public”;

“is designed or calculated to cause serious interference with or serious disruption of an essential service, facility or system, or the delivery of any such service, facility or system, whether public or private”‘

“unduly [compelling, intimidating, forcing, coercing, inducing, or causing] a person, a government, the general public or a segment of the public, or a domestic or an international organisation or body or intergovernmental organisation or body, to do or to abstain or refrain from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles”.

Section 1 also provides that ‘engaging in terrorist activity’ means:

“the facilitation of, participation or assistance in, or contribution to the commission, performance or carrying out of; or the performance of an act in preparation for or planning of; or instructing, directly or indirectly, the commission, performance, carrying out of; or facilitation of, participation or assistance in, or contribution to the commission, performance or carrying out of; or performance of an act in preparation for or planning of, a terrorist activity.”

Accordingly, section 2 of the Act declares that terrorist activities in South Africa are illegal and punishable; and section 14 of the Act declares that threatening to commit terrorist activities is also illegal and punishable. Section 18 provides that the person who ‘merely’ threatens terrorist activities, must be punished in the same way as someone who actually committed terrorist activities.

SOUTH_AFRICA_EEF_1878673gWith this in mind, let us turn to the Economic Freedom Fighters (EFF) – a self-describing ‘Marxist-Leninist-Fanonian’ political party. Last Sunday, ‘Commander-in-Chief’ Julius Malema spoke to Al Jazeera, claiming that the ruling African National Congress (ANC) had rigged the 2014 election results in the Gauteng Province. This, Malema said, will not be ‘allowed’ to happen again:

“Part of the revolutionary duty is to fight and we are not ashamed if the need arise for us to take up arms and fight. We will fight.”

“This regime must respond peacefully to our demands, must respond constitutionally to our demands. And if they are going to respond violently – like they did in the township of Alexandra, just outside Johannesburg, when people said these results do not reflect the outcome of our votes, they sent the army to go and intimidate our people – we are not going to stand back. Zuma is not going to use the army to intimidate us. We are not scared of the army. We are not scared to fight. We will fight.”

When asked by the interviewer if Malema meant the EFF will take up arms against the State, he responded:

“Yeah, literally. I mean it literally. We are not scared. We are not going to have a government that disrespects us.”

“[The ANC government] beat us up in Parliament and they send soldiers to places like Alexandra where people are protesting. We will run out of patience very soon and we will remove this government through the barrel of a gun.”

What Malema is saying would appeal to libertarians in most circumstances. We have long held the view that the government is not magically exempt from the ordinary rules of human interaction. Indeed, when we are attacked by someone else, we are allowed to defend ourselves violently against them. So, too, when the government attempts to violate our individual rights, are we allowed to respond with force. However, two things should be borne in mind when considering this:

You cannot ‘defend’ yourself against legitimate force. This should be obvious. If a person is in the process of beating up his victim, he cannot ‘defend’ himself against the police when they arrive to apprehend him. That is not defensive force within the context of the non-aggression principle. The police, who are attempting to apprehend the criminal, are using defensive force in this situation, because they are defending the individual rights of the victim. In the case of the parliamentary fiasco or other riotous behavior by the EFF, they cannot claim they are ‘defending’ themselves when the police or the Army are trying to bring peace to the situation they have caused. South Africans have generally shown themselves to be unable to protest peacefully over passionate political issues, and so it follows that law enforcement has a somewhat rough way of restoring order.

When the crux of your platform is force, you are never in a position to claim you are ‘protesting peacefully’ or ‘using peaceful means’. Marxists, firstly, believe that the conception of private property is illegitimate or, alternatively, nonexistent. It is a tool for exploitation by some over others. Therefore, all property (except ‘personal property’) must be owned by the people in common (Friedrich Engels said that ‘ownership by the people’ inevitably means ownership by the State) for all their benefit. Leninists, to add on to that, believe that violent revolution by the poor is a justifiable means to this end of State ownership, led by a vanguard political movement. As a self-describing Marxist-Leninist organization, the EFF believes as a matter of principle in achieving their political ends through revolution. Indeed, as Marxists have long said, democracy is fine if it brings about the results they seek; but at the end of the day, the liberation of the poor is the primary consideration, over and above democracy. The EFF has threatened to violently grab land (and they have actually done this before) and bring private businesses, such as ABSA Bank, to a standstill.

Clearly, the EFF is not what freedom-loving individuals have in mind when they say the violence of the State may be resisted. They seek, consciously or unconsciously, only to bring pain and misery to South Africans. The experience in Cuba, Venezuela, and Zimbabwe, has shown what happens when Marxist-Leninists get into power (and if they don’t make it into power democratically; they basically always take to arms) – poverty, state suppression of individual expression, and lifelong dictators who flee to capitalist nations for their medical treatment while leaving their citizens with ‘free’ universal healthcare which is likely to kill them. The EFF takes the worst elements of the Apartheid regime and combines them with the worst elements of virtually every other totalitarian regime in the world. Neither the EFF’s goals nor methods are legitimate in the context of a free society based on the rule of law, property rights, and individualism.

This is why it would be entirely within the South African government’s legitimate power to deal with the EFF and its leadership through the criminal justice system, relying upon the Protection of Constitutional Democracy against Terrorist and Related Activities Act. The mistake of non-action was made in Germany, allowing the NSDAP to make violent threats and actually use violent methods to ‘campaign’. This, many say, contributed to a culture a fear, leading to the NSDAP winning the 1933 elections. In the prelude to those elections, Hans Frank, Hitler’s lawyer, also developed a ‘legality strategy’ for their ‘National Revolution’, through which the NSDAP used the law and democracy to gain power.

As South Africans, we shouldn’t wait for the EFF to actualize their promises of violence, nor should we accept their ‘democratic’ and ‘peaceful’ rhetoric at its face value.

Martin is a final year law student at the University of Pretoria and the Academic Programs Director for Students For Liberty in Southern Africa (www.studentsforliberty.org/africa/). He is a co-founder and editor of the Rational Standard and the Editor-in-Chief of Being Libertarian (www.beinglibertarian.com).

You can find him on Facebook or contact him via email at [email protected]